Reporting a Pardoned Conviction Under the FCRA

If you were fortunate enough to be granted a pardon, you may think you have overcome the biggest obstacle towards moving forward with your life. Unfortunately, just because the state has formally forgiven you does not mean potential employers or landlords have.

Despite requirements under the federal Fair Credit Reporting Act (FCRA) regarding what can be reported on a background check, when a criminal conviction has been pardoned it will largely depend on the effect of a pardon under the laws of each individual state as to whether and how that pardoned conviction can be reported.

Requirements of the Fair Credit Reporting Act (FCRA)

The FCRA, codified at Title 15 United States Code Section 1681, is a federal law that governs how a consumer reporting agency (CRA) can collect, disseminate and use consumer information. While the FCRA focuses in large part on credit information, background check companies, whose focus is performing criminal background checks, are also bound by the rules contained in the statute.

Under the FCRA, furnishers of information to background check companies are required to provide accurate information.1 Additionally, if a dispute is filed with the background check company, they are required to investigate the disputed information and remove or update any information that is found to be inaccurate or incomplete.2

There are also time limits in place for the reporting of most adverse information; however, one major exception to this rule is criminal convictions. In general, there is a seven-year time limit on reporting adverse information.3 This seven-year time limit explicitly applies to records of arrest.4 However, as a result of the 1998 Amendments to the FCRA, there is no longer a time limit for reporting criminal convictions.5

Reporting of Criminal Case Information

The FCRA permits background check companies to report cases for which there was an arrest but no conviction for seven years from the entry of the charge(s). Ignoring the possibility of differing state laws, compliance under the FCRA for reporting dismissed cases or convictions seem fairly straightforward. However, it is not always that simple and issues can arise on how to interpret the FCRA.

One of these questions is currently the issue in a case before the United States Court of Appeals for the Ninth Circuit, Moran v. The Screening Pros LLC, which addresses when the seven-year period begins running in the case of an arrest and subsequent dismissal. The Federal Trade Commission (FTC) and the Consumer Financial Protection Bureau (CFPB) filed an amicus brief in the case, which can be found here. In the brief, they argue that the time period starts at the date of the charge not the date of the dismissal, because the dismissal alone is not an adverse item and should not restart the time period. A pardon should and likely would be viewed in the same fashion.

How to Report a Pardoned Conviction

When a conviction has been pardoned, it is not expunged or erased from the individual’s records. A notation will typically be added to the individual’s criminal record in the state’s central repository to indicate the conviction has been pardoned. A pardon is essentially the state forgiving the individual for the crime and removing negative consequences that resulted from the conviction, but in most states the conviction itself stands and is not removed.

To comply with the FCRA requirements regarding accuracy and completeness, the fact that the pardon has been granted should be added to the case information to ensure the complete picture is provided. However, as long as the conviction still remains a conviction under the state law, the case can, under the FCRA, continue to be reported indefinitely.

The analysis becomes more complicated if the state law dictates that a pardoned conviction is no longer deemed a conviction. In this situation, the consumer reporting agency could arguably only continue to report the information for seven years from the date of conviction. Applying the same logic as is at issue in the Moran case discussed above, a pardon, which is not an adverse item, would not restart the clock. Therefore, while the conviction may not be erased from the record, it is no longer considered to be a conviction, and the seven-year time limit would need to be applied.

State Laws

Compliance with federal law is not always enough; some states have enacted laws that impose stricter requirements on consumer reporting agencies. While this often makes the job of background check companies more difficult, in this instance, some state laws clarify the issue by requiring companies not report convictions that have been pardoned.6

Additionally some states impose a seven-year reporting window for convictions. In those states, a pardon would not restart the clock; this means that even if a pardoned conviction is still considered a conviction under state law, reporting of the case is prohibited seven years from the date of disposition, release or parole.7

It is also relevant to note that a pardon under state law will often permit for the case to be sealed or expunged. If that occurs, the consumer reporting agency may then be legally required to remove the case as they would be following any other expungement or sealing in that state.

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